Thursday, May 26, 2016

A good way to know if an article by a law professor about the Supreme Court, or Constitutional law is legit or horseshit it is to skip to the bottom first to check out where the professor teaches. Today's NYTimes has a piece by a guy named Barry McDonald in which Professor McD suggests that there is no urgency to filling the presently vacant Supreme Court seat because,

[A]n evenly divided court may prompt the justices to reach practical
compromises that assist real-life litigants, instead of making bold,
sweeping and highly debatable proclamations about the meaning of the
Constitution. Being a dispute resolver rather than a Constitution oracle
surely fits better into the intended — and democratic — constitutional
scheme.

I foolishly did not follow my own rule, and therefore did not realize that Professor McDonald teaches at Pepperdine University-- you know, the place where Ken Starr used to teach? What's going on at the Harvard of Malibu these days? Well, hey, they just held a big ol' symposium featuring Ed Meese and Dick Cheney. Classy!

Professor McDonald tells us that the concept of judicial review and the role of the judiciary in governance as we understand those things "would be unrecognizable to the framers of the Constitution." I put it to you that this is either a deliberate misrepresentation, or that Professor McDonald has somehow mislaid his copy of The Federalist Papers. As Alvy Singer might have said if Annie Hall was about Constitutional law, "I happen to have Alexander Hamilton right here....."

The complete independence
of the courts of justice is
peculiarly essential in a limited Constitution. By a limited
Constitution, I
understand one which contains certain specified exceptions to the
legislative
authority; such, for instance, as that it shall pass no bills of
attainder, no
ex post facto laws, and the like. Limitations of
this kind can be
preserved in practice no other way than through the medium of courts of
justice,
whose duty it must be to declare all acts contrary to the manifest
tenor of the
Constitution void. Without this, all the reservations of particular
rights or
privileges would amount to nothing.

It is probably true that the federal judiciary is not particularly "democratic", but that is by design-- the job of interpreting the law is not a job that is best accomplished by democratic means. For reasons that I suspect are largely demagogic Professor McDonald has elected to misrepresent Constitutional history and over two hundred years of stare decisis in order to advocate for judicial gridlock. Lesser men would be ashamed,